This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Roderick A. O’Neal,





Anchor Paper Company,



Department of Employment and Economic Development,



Filed August 23, 2005

Forsberg, Judge


Department of Employment and Economic Development

File No. 14507 04


Roderick A. O’Neal, 5 Ridgecrest Drive, Apt. #308, St. Cloud, MN 56303(pro se relator)


Thomas H. Boyd, Matthew D. Spohn, Winthrop & Weinstine, P.A., Suite 3500, 225 South Sixth Street, Minneapolis, MN 55402 (for respondent Anchor Paper)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)


            Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            By writ of certiorari, relator Roderick O’Neal challenges the order of the Department of Employment and Economic Development’s senior unemployment review judge (SURJ) disqualifying him from receiving unemployment benefits.  Because the record reasonably supports the SURJ’s findings and because the department’s determination that relator committed employment misconduct is correct, we affirm.


            Relator was employed by respondent Anchor Paper Company from August 30, 1999 to August 24, 2004.  Relator stated that he was discharged after missing three days of work for a doctor’s appointment and a family visit in Tennessee without obtaining prior approval to take time off.  Relator also made a written statement, explaining that the reason he was given for his discharge was that:

I was told that I had to wait to go and see my mother but I went any[]way[,] which I had agreed [not to do] until I [got] some vacation time back but it was my mother’s birthday so I went[.] [S]orry about that[,] [it won’t] happen again.


Relator included that he knew “it was wrong to do.”


            It was determined that relator was disqualified for unemployment benefits because he was discharged for attendance-related misconduct, and relator appealed.  An unemployment law judge (ULJ) held a telephone hearing in which relator testified and to which respondent submitted records from relator’s personnel file. 

            During the hearing, relator admitting missing at least one scheduled workday and part of another.  He agreed that he knew permission was required prior to taking days off.  He also testified that there were supervisors he could have talked to about leaving town.  Relator testified, though, that he obtained approval by leaving a voice mail for his immediate supervisor, who was on vacation at the time.  Relator denied writing that he knew he was not supposed to go until he had vacation time but went anyway. 

            After the hearing, the ULJ found that a preponderance of the evidence proved relator was discharged for misconduct and concluded he was not entitled to benefits.  The ULJ found that relator had a history of unexcused absenteeism when he had no vacation or sick time available and that he missed work on three days to visit his mother in Tennessee, despite being warned that he had to obtain prior approval before taking time off.  The ULJ also found that relator knew it was not sufficient to simply leave a voice mail message for his supervisor before taking time off.  The ULJ specifically found that relator’s statements, which he later denied making, were more credible than his hearing testimony.  On further review, the SURJ held that there were no determinative facts in dispute and ordered that the findings and conclusions of the ULJ be adopted as those of the department.  This certiorari appeal followed.


            On certiorari appeal, we accord particular deference to the decision of the senior unemployment review judge.[1] Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The determination of whether an employee committed a specific act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether specific acts constitute misconduct is a question of law, which we review de novo.  Id.  We review the findings of fact in the light most favorable to the decision, and we will not reverse such findings if they are reasonably supported by the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). 

            When employees are discharged for employment misconduct, they are disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2004).  “Employment misconduct” is defined as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Id., subd. 6 (2004).

            Employers have the right to create and enforce reasonable rules relating to absenteeism.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Particularly after repeated warnings, absenteeism and tardiness are strong evidence that the employee disregardsthe employer’s interests or lacks concern for the employment.  See, e.g., Jones, 361 N.W.2d at 120 (concluding record sufficiently demonstrated relator’s lack of concern for her job because of chronic and excessive absences); McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (same).  Similarly, an employee who fails to properly notify an employer of intended absences and fails to comply with policies regarding attendance demonstrates a lack of concern for the employment and commits disqualifying misconduct.  See Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686-87 (Minn. App. 1984) (affirming determination of misconduct after employee received repeated warnings regarding absenteeism); Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984) (holding that an employee committed misconduct by repeatedly failing to provide two hours’ notice of absences as required by employer).

            In this case, relator admitted in his written statement that, just prior to his discharge, he was absent from work on scheduled workdays without giving advance notice or obtaining his supervisor’s permission to take a vacation day or unpaid leave.  He also testified that he knew he was supposed to get permission from his supervisor to take a day off of work.  Relator further admitted that he had no accrued vacation time at the time of his absence.  Respondent submitted documents chronicling relator’s absences just prior to his discharge, as well as documentation of several previous instances of unexcused absences, tardiness, and failure to complete a scheduled shift.  And respondent submitted evidence of at least two prior warnings about unscheduled absences, including a May 25, 2004 letter stating that relator had depleted his vacation time and could not take additional time off without pay unless it was an emergency situation.  Relator acknowledged receipt of the warning letter by signing it.  Relator submitted no evidence that he missed work because of an emergency or medical situation.  The SURJ’s findings are more than adequately supported by the record evidence.  Any conflicts in the evidence were resolved in favor of respondent based on credibility determinations that this court will not disturb.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            We conclude that relator’s actions constituted employment misconduct.  Relator argues in his brief that he only missed two days of work and that it was for his mother’s birthday.  But relator had received previous warnings for no-call/no-shows and unexcused absences and he was warned in a May 2004 letter that last-minute, non-emergency absences without prior approval were not acceptable.  His statements that he knew “it was wrong to do” and that he knew he could be discharged for such conduct display his awareness that leaving a voice mail for his supervisor shortly before or after relator left town was unacceptable.  His admissions that he had agreed not to go until he had vacation time to use, but went anyway, reflects a clear lack of concern for his employment.  

            Relator seems to assert in his written submission to this court that respondent used his absenteeism as a pretext for his discharge and that his discharge was actually due to animus against him on the part of other employees, including his supervisor and the supervisor’s brother.  But relator’s claims of racial discrimination and favoritism are based largely on material that is outside the record on appeal.  Relator’s brief to this court is approximately 10 handwritten pages, consisting largely of factual allegations not submitted to the ULJ or testified to during the hearing.  The record on appeal consists of the papers filed in the trial court, exhibits, and the transcript of the proceedings, if any.  Minn. R. Civ. App. P. 110.01; see also Minn. R. Civ. App. P. 115.04, subd. 1 (explaining that Minn. R. Civ. App. P. 110.01 applies to appeals by writ of certiorari).  “It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.”  Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).  We decline to overturn the SURJ’s finding that relator was discharged because of employment misconduct based on this extra-record material.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Under a recent change by the legislature, the decision is now made by the senior unemployment review judge rather than the commissioner’s representative.  Our standard of review of the decision has not changed.  2004 Minn. Laws ch. 183, § 71.